27 Tex. 148 | Tex. | 1863
The general principle that a party having an interest in the subject matter of litigation between other parties, may intervene in such suit for the purpose of ascertaining and protecting his interest, is a well settled rule of practice. The fact that the property or fund to which the intervenor sets up a claim has been placed, by an order of the court in the suit between the original parties, in the hands of a receiver, would, if it had any effect, rather strengthen than detract from his right to intervene and assert his interest in the fund.
The exceptions taken by the plaintiff, in the original suit, in the court below, to the intervenor’s petition, manifestly presented no grounds for its dismissal. All of them (except the general one, that the petition was insufficient, &c., which Avas clearly not well taken,) presented matters of fact that may be pertinent upon a trial upon the merits; or,, if intended as deductions of Law and fact from the allegations in the intervenor’s petition, they are not believed to be so warranted by it, as to justify the dismissal of his petition by the court.
The exceptions taken to the petition in the court below have not been insisted upon by the counsel for the appellee in his argument before us. He now urges that the petition was properly dismissed, because it was not filed in due time. It can hardly be denied that the court in which the suit is pending should have some discretion as to .this. It Avould be a sufficient answer to the objection, however, in the present case, to say that the petition was not excepted to for any reason of this sort in the District Court; nor, in fact, could it have been. The assignment, it is said by appellee, was made during a term of the District Court at Avhich the cause seems to have been continued for his counsel ; the petition of the intervenor was filed at the next term. This, under the circumstances of this case, can hardly be regarded as such laches as should deprive a party of the privilege of being heard. More than this, the judgment of the District Court establishes the fact that appellee’s attachment gave him no interest in the fund to which the intervenor asserts a claim. And it was not until the very day that the latter asked leave of the court to
The judgment must, therefore, be reversed, and the cause remanded for further proceedings.
Reversed and remanded.
